March 14, 2014

Written By: Thomas F. Carroll, III and Stephen Eisdorfer

On March 14, 2014, the New Jersey Supreme Court ordered the New Jersey Council on Affordable Housing (COAH) to adopt new regulations establishing municipal fair share housing obligations no later than October 22, 2014.

The Court rejected COAH’s request for an open-ended extension of time to promulgate regulations. Instead, it adopted the argument made by Hill Wallack LLP on behalf of the New Jersey Builders Association (NJBA) that there must be a fixed deadline.

In addition, the Court declared that if COAH misses the final deadline, builders may apply to the Court for permission to bypass COAH and to file lawsuits against municipalities seeking the right to construct inclusionary developments. This was also a position urged by Hill Wallack LLP on behalf of the NJBA. 

On September 26, 2013, the Supreme Court had invalidated the so-called "third round" regulations that COAH adopted in 2008. At that time, the Court ordered COAH to adopt new regulations within five months. On February 26, 2014, COAH filed a motion with the Supreme Court requesting an open-ended extension of time within which to adopt new rules.

In its March 14, 2014, order, the Supreme Court required COAH to draft rules by May 1, 2014, and publish proposed rules in the New Jersey Register by June 2 for public comment. COAH must close public comment period and complete any public hearings by August 1.  COAH must adopt rules by October 22, and publish them in the New Jersey Register by November 17.

COAH has not had valid regulations establishing municipal housing obligations to create housing opportunities for low and moderate income households since 1999.

Hill Wallack LLP has represented the New Jersey Builders Association in successful appeals challenging COAH's 2004 regulations as providing inadequate housing opportunities, as well as its 2008 regulations. Our attorneys would be glad to address any questions readers may have as to the scope and consequences of the Supreme Court's decision.

For further information concerning this critically important decision, readers are encouraged to contact Thomas F. Carroll, III, Esq., or Stephen Eisdorfer, Esq., of Hill Wallack LLP, at 609-924-0808.


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